As discussed previously on this blog site, Robbery, under NY Penal Law section 160.00, is defined as “forcible stealing.” Thus it differs from other theft crimes for which force is not an element. In this legal context, “forcible” means threatening or using physical force. The force element can be satisfied in any number of ways: from a simple threatening fist pump and pushing a victim repeatedly into a corner to waiving a box cutter and brandishing a weapon in the victim’s face. Of course, if an alleged thief brandishes a “firearm” [i.e. a gun; for specific legal definition see: NY Penal Law 265.00(2)] at a Robbery in the New York City area or Westchester County, the severity of the crime is heightened. Any experienced New York criminal attorney knows that prosecutors in New York are tougher on defendants who perpetrate felonies while carrying firearms, guns, pistols or any type of weapon. If you brandish a weapon in New York during a forcible theft (i.e, a “Robbery”) you will, at the very least, face charges of Robbery in the Second Degree (NY Penal Law Section 160.10) – a class C felony with a possible sentence ranging from three and one half to fifteen years in prison – and you may face charges of Robbery in the First Degree (NY Penal Law Section 160.15) – a class B felony punishable from five to twenty five years in state prison. These terms of imprisonment are for first time offenders.
A critical component with regards to carrying a firearm during a Robbery, is whether that gun is loaded. Under NY Penal Law 160.10(2)(b) if a robber “displays what appears to be…a firearm” then that alleged robber will be convicted of Robbery in the Second degree. On the other hand, a defendant can only be convicted of Robbery in the First Degree if that firearm was loaded and “a shot readily capable of producing death or other serious physical injury could be discharged” (NY Penal Law 160.15(4)). Therefore, if what appears to be a gun is brandished during a Robbery and the defendant is charged with Robbery in the First Degree, a New York criminal lawyer will always raise the affirmative defense that the gun was not loaded (or not a gun at all) and thus not a deadly weapon. If it can not be proven beyond a reasonable doubt that the firearm was indeed a loaded and deadly weapon, then the defendant may only be convicted of Robbery in the Second Degree. As noted above, this can mean significantly less time on a prison sentence especially when multiple counts/charges are levied against the defendant (as will almost always be the case).
So maybe we shouldn’t make fun of those crafty thieves who only bring toy guns to commit a Robbery. While a victim of any crime certainly will not chuckle, a toy gun can completely change the dynamics of a Robbery case. In People v. Lyde, 98 A.D.2d 650 (1983) the First Department Appellate Division of New York reduced a conviction of four counts of Robbery to two counts of Robbery in the Second Degree and two counts of Robbery in the Third Degree. Lyde’s original conviction for Robbery in the First Degree was predicated upon the fact that he had “displayed what appeared to be a pistol” during the commission of several robberies. However, Lyde was arrested in possession of a toy gun, and it was shown that he perpetrated the robberies only with that toy and not a real pistol. Convincing as it may have appeared to the victims, it was not a deadly weapon. Therefore, the court correctly reduced the First Degree Robbery conviction. Similarly, the Appellate Court in People v. Wilcox, 53 A.D.2d 738 (1976) ruled that the lower court had erred when submitting to the jury the crime of Robbery in the First Degree. Wilcox had used a starter’s pistol during the commission of the Robbery. The court reasoned that the starter pistol was not a firearm capable of causing death or serious physical injury. Arguably, while a starter pistol looks no different than a real one, it merely makes a “bang” to signal the beginning or a race. It cannot be used in a more violent or deadly fashion. Therefore, Wilcox, like Lyde, was convicted of Robbery in the Second Degree not first.
It is interesting to note that there is some case law which suggests that one does not have to show an actual weapon to be convicted of Robbery in the Second Degree. Confusing? Yes, but in People v. Knowles, A.D.2d 116 (1979), the defendant was convicted of Robbery in the Second Degree after he coerced the victim into surrendering property by holding his hand in his pocket in such a way as to give the victim the impression that he had a gun. Gullibility of the victim aside, the court reasoned that in this situation of making the impression of a gun was no different than holding an inoperable gun for purposes of the statute. In other words, putting your finger or a stick in your jacket pocket and poking it out may look as if you are possessing a gun of some kind. This case may be a bit of an outlier, but it shows how severe the New York criminal courts can be when a firearm, or even the impression of a firearm, is involved in any Robbery offense found in Article 165 of the New York Penal Law.
To better understand the crimes of Robbery and Criminal Possession of a Weapon, follow the highlighted links. Additional materials on these and other crimes is available through the NewYorkCriminalLawyerBlog.Com where you can find analysis of cases in the New York City media, criminal statutes and legal decisions.
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Additional Saland Law PC websites and bogs:
NYDeskAppearanceTicket.Com – Misdemeanor and Desk Appearance Ticket Crimes NewYorkTheftAndLarcenyLawyers.Com – Felony & Misdemeanor Theft Crimes (November 2011) NewYorkTheftAndLarcenyLawyersBlog.Com – Felony & Misdemeanor Theft Crime Statute & Case Analysis (November 2011)